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In Georgia, Secrecy Is More Important Than Life

By Jesse Wegman May 19, 2014 6:05 pmMay 19, 2014 6:05 pm

Does a citizen have a right to know how his government plans to kill him? In Georgia, the answer to that question appears to be “no.”

The Georgia Supreme Court on Monday ruled against Warren Lee Hill, a death-row inmate who had challenged the state’s law hiding the makeup of the lethal-injection drugs it uses, as well as the identities of the loosely regulated compounding pharmacies that produce them.

Laws like these have come under increasing scrutiny in the wake of multiple botched lethal-injection executions, most recently last month in Oklahoma. (Lethal-injection states turned to shady pharmacies after their usual European suppliers refused to continue providing drugs for executions.)
Last year, Mr. Hill convinced a lower state court that his First Amendment and due-process rights were violated by Georgia’s cloak-and-dagger method. In its ruling Monday, the state’s high court reversed.

With regard to the First Amendment claim, the court wrote, there has been “a longstanding tradition of concealing the identities of those who carry out” executions. Among the reasons the court cited for this tradition were “avoiding the risk of harassment or some other form of retaliation” by a prisoner’s relatives or others who oppose capital punishment.

But Mr. Hill was not seeking the name of his executioner. He simply wanted to know the nature and provenance of the drugs that would be used to end his life. The court breezed over this distinction without citation to case law or any other authority. “The same logic [that provides for an executioner’s privacy] applies to the persons and entities involved in making the preparations for the actual execution, including those involved in procuring the execution drugs,” the court wrote.

In other words, as Justice Robert Benham wrote in dissent, the state wants to carry out the ultimate punishment in secret, and in response to challenges that these secret methods may not comport with the Eighth Amendment’s ban on cruel and unusual punishment, it says only, “trust us.”

Putting aside for the moment whether an executioner’s (or drugmaker’s) interest in avoiding harassment should outweigh the constitutional rights of a condemned man, it is notable that courts never seem to identify any actual instances of harassment, only the “risk” of it.

The death penalty in America long ago lost any claim to being consistently or fairly applied, if it ever was. But as Justice Benham argued, there must at the very least be “certainty” in its administration.

“Georgia’s confidential inmate state secret statute,” he wrote, “does nothing to achieve a high level of certainty. Rather, the law has the effect of creating the very secret star chamber-like proceedings in which this State has promised its citizens it would not engage.”